United States District Court, D. Montana, Missoula Division
CARLENE O'CONNELL, Individually, and as the Personal Representative of the Estate of LARRY O'CONNELL, Plaintiff,
LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant
For Carlene O'Connell, Individually and as Personal Representative of the Estate of Larry O'Connell, Plaintiff: Patrick R. Sheehy, Victor R. Halverson, LEAD ATTORNEYS, HALVERSON & SHEEHY PLLC, Billings, MT.
For Liberty Mutual Fire Insurance Company, Defendant: Jesse Beaudette, LEAD ATTORNEY, Robin M. Turner, BOHYER, ERICKSON, BEAUDETTE & TRANEL, P.C., Missoula, MT.
DONALD W. MOLLOY, UNITED STATES DISTRICT JUDGE.
Plaintiff Carlene O'Connell (" Carlene" ) seeks a declaratory judgment against Defendant Liberty Mutual Fire Insurance Company (" Liberty Mutual" ), asking this Court determine, as a matter of law, that the term " motor vehicle" as used in the exclusionary language of the underinsured motorist (UIM) coverage under the Policy at issue is ambiguous. The parties have filed cross motions for summary judgment. (Docs. 14 and 17.) Because the policy language is unambiguous, plaintiff's motion is denied and summary judgment is granted in favor of Liberty Mutual.
On September 15, 2012, Larry and Carlene O'Connell (" the O'Connells" ) were driving their 2005 Yamaha Star motorcycle with Carlene as a passenger in Billings, Montana. At the intersection of 13th Street West and Avenue D, the O'Connells' motorcycle was struck by a sports utility vehicle driven by David Johnson (" Johnson" ). Johnson's negligence was the cause of the collision. The O'Connells were not negligent in the operation of the motorcycle. Larry died from the injuries he received in the collision; Carlene sustained bodily injuries.
At the time of the wreck, the O'Connells were both named insureds on their own automobile insurance policy (" the Policy" ) with Liberty Mutual. The Policy declaration page lists three automobiles owned by the O'Connells, but does not cover their motorcycle. The Policy insured the O'Connells for liability, uninsured, and UIM in the amount of $50,000 per person and $100,000 per accident. The Policy also provided medical payments (" med pay" ) coverage in the amount of $5,000 per person. A separate premium was charged for each of the O'Connells' three automobiles for all coverages, which triggered stacking of their personal and portable coverages of UIM, uninsured, and med pay.
Carlene made a claim for UIM coverage under the Policy after exhausting Johnson's liability coverage with State Farm. With regard to UIM coverage, the Policy provides:
We will pay compensatory damages which an " insured" is legally entitled to recover from the owner or operator of an " underinsured motor vehicle" because of " bodily injury" :
1. Sustained by an " insured" ; and